winona rosa

Thursday, September 22, 2011

CPS Involved In Child Trafficking Rings Explains

CPS Policy for Prosecuting Casesof Human TraffickingMay 2011CPS POLICY FOR PROSECUTING CASES OFHUMAN TRAFFICKINGContents PageIntroduction 2What is human trafficking?     4What is smuggling? 7The role of the CPS 8The Code for Crown Prosecutors 9Legislation 11Financial powers 12Building a prosecution case 13Victims and Witnesses 16Child Victims 21Victims of forced labour and servitude 25Acceptance of pleas 26The Prosecutors role in sentencing 27Prosecuting suspects who might be trafficked victims 30Complaints 32Conclusion 32Annex A: Legislation 33Annex B: Contact details 34Glossary of Terms 371IntroductionTrafficking in human beings is a serious crime which demeans the value ofhuman life. It is a form of modern day slavery and involves the recruitmentand movement of the most vulnerable men, women and children to exploitthem in degrading situations for financial rewards for their traffickers.Trafficking often takes place across international borders; but it can alsohappen within the United Kingdom. Victims might be foreign nationals, but canalso include British Citizens. It has a devastating effect not only on theindividuals trafficked but also their families who may themselves be subjectedto threats or be in debt to traffickers; it causes harm to the victims and tosociety as a whole.The most effective means of combating trafficking are prevention anddisruption – by dismantling the criminal network; successful prosecutions andconfiscating assets which are the proceeds of crime. The Crown ProsecutionService (CPS) is committed to reducing the harm caused by trafficking andexploitation through prosecuting those responsible. This policy statementexplains the way in which we, the CPS, deal with cases of human traffickingand the wide range of other crime associated with it. It explains what the CPSdoes, how we prosecute cases of human trafficking and what measures wecan rely on to protect and support trafficked victims. The document isdesigned for those who support trafficked victims, whether professionally orpersonally, although it may be of interest to victims and witnesses and thegeneral public.In identifying ways to improve the quality of our prosecutions and the supportavailable for victims of trafficking, we make links with other crimes committedagainst women, often within a context of power and control. Human traffickingis part of the overarching CPS Violence against Women strategy, which alsoincludes rape and sexual abuse. Research has shown that human traffickingfor the purposes of sexual exploitation disproportionately affects women; 75%of referrals made to the National Referral Mechanism were for female victims,and the UN estimates that 79% of all trafficking victims are women and girls.In making these links prosecutors can make connections and transfer goodpractice between crimes of violence against women.However, it is acknowledged that whilst there is an over-representation ofsexually exploited women, it remains likely that labour exploitation and malevictims are relatively under-detected; male victims are less likely to report theirtrafficking and exploitation. Boys and young men are also equally at risk ofsexual exploitation; the CPS does not neglect the abuse directed towardsthem. All of our policies are gender neutral and will be applied fairly andimpartially.This document provides a clear statement about the role of the CPS and howwe make decisions in prosecutions, from deciding whether to chargesomeone with a criminal offence and what that charge or charges should be.It explains how we work with the police and other investigators in case2building and our role in supporting and protecting victims and witnessesthrough the process.This policy statement is supported by more detailed guidance for CPSprosecutors so that they too have a clear understanding of the policy and howthey can best respond to this type of crime. Some words and phrases usedmay not be familiar to everybody. We have therefore set out a glossary ofterms at Annex C in which we have defined some of the words and phrasesused.Victims and WitnessesWe recognise the central role of victims and witnesses in achieving successfulprosecutions. We know that many victims and witnesses take significant risksin giving evidence against their traffickers and exploiters; they often fear theconsequences of giving evidence and may be reluctant to support criminalproceedings. They may also worry that they may not be believed. Victims andwitnesses may also be apprehensive or frightened about coming to court togive their evidence. Whilst we know it will be difficult, we will work with arange of other government and non government agencies together with thepolice and the courts to provide them with appropriate protection and supportto ensure their safety and to help them to give evidence. The CPS willconsider the range of measures available to support and protect traffickedvictims to encourage them to give their best evidence and make appropriateapplications to the court.ChildrenChildren are particularly vulnerable to trafficking and exploitation and are likelyto require extra support. Child trafficking is first and foremost a child protectionissue; child victims are likely to be in need of welfare services and, in manycases, protection and safeguarding. Although the main responsibility forchildren’s welfare and safety will usually lie with other agencies such associal, health and education services, the CPS will positively engage withother authorities and agencies to support them in safeguarding children and indeciding what is the best way to help them. Children are often trafficked intocriminal activities; their first encounter is likely to be with law enforcement. Inthese circumstances prosecutors must work with law enforcement andorganisations that support child victims of trafficking, to ensure that allrelevant information is available and that all appropriate assessments areundertaken.Working with othersThe CPS is one of a number of agencies that respond to the challenges ofdealing with human trafficking and we support the need for a multi-agencyresponse. We work closely with the police, other agencies in the criminaljustice system, community groups and organisations which support victimsand witnesses in identifying ways to improve our collective response. This3includes more effective disruption, prevention, investigation and prosecution,including restraint and confiscation of assets, as well as improving victim andwitness care and protection. We know that non-government organisations willoften have greater experience of victims and their differing needs, and werecognise the important role they play.A criminal justice route is not the only way of responding to trafficking; criminal(and civil) law may need to be used in conjunction with support services forvictims.International roleBecause of the global nature of trafficking, with victims often beingtransported across a number of different countries to their destination, theCPS has a significant role in supporting the UK Government in itsinternational efforts to combat trafficking. We do this by helping lawenforcement and prosecutors in other developing countries to investigate andprosecute cases of trafficking themselves, as well as raising awareness oftrafficking. By building capacity in these countries – which is the expertiseand knowledge of how to identify, investigate, and prove offences - we aim tohelp them to prosecute its offenders and its offences better, thereby reducingthe potential harm through crime there and in the UK. In responding to thisglobal crime, the CPS also participates in Joint Investigation Teams (JITs)which are multi agency teams involving law enforcement officers andprosecutors from more than one country, to tackle the chain of criminalsacross different countries responsible for recruiting, moving and exploitingvulnerable victims.What is human trafficking?Human trafficking is the acquisition of people through the use of force,coercion, deception, through debt bondage or other means with the aim ofexploiting them. Men, women and children can fall into the hands of traffickerseither in their own countries or abroad. Trafficking occurs both across bordersand within a country; it is not always visible - exploitative situations arefrequently covert and not easily detectable.The Palermo Protocol1 provides the first internationally recognised definitionof human trafficking:Trafficking in persons shall mean the recruitment, transportation, transfer,harbouring or receipt of persons, by means of the threat or use of force orother forms of coercion, of abduction, of fraud, of deception, of abuse ofpower or of a position of vulnerability or of the giving or receiving of payments1 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Womenand Children, Supplementing the UN Convention Against Transnational Organised Crime.This was adopted by the United Nations in 2000 in Palermo, Italy4or benefits to achieve the consent of a person having control over anotherperson, for the purpose of exploitation. Exploitation shall include, at aminimum, the exploitation of the prostitution of others or other forms of sexualexploitation, forced labour or services, slavery or practices similar to slavery,servitude or removal of organs.Human trafficking usually has three constituent elements which are explainedin the table below2The actRecruitmentTransportTransferHarbouringReceipt of personsThe MeansThreat or use of forceCoercion, AbductionFraudDeceptionAbuse of power orvulnerabilityGiving payments orbenefitsThe PurposeExploitation, including:Prostitution of othersSexual ExploitationForced labourSlavery or similar practicesRemoval of organsOther types of exploitation= TRAFFICKINGHuman trafficking is often considered to be organised crime committed on alarge commercial scale. But trafficking covers a range of criminal activity, andcan also be committed by a single person who may be known or related to thevictim. This makes it easier for the trafficker to recruit people as there mayalready be a relationship of trust.The means of trafficking may also be more subtle than those describedabove. For example, victims may have an emotional attachment to theirtrafficker and may be psychologically bullied or coerced into a situation ofexploitation. Or they may be totally dependent on those who are exploitingthem. For child victims, consent is irrelevant therefore there is no requirementto show the means. The Palermo Protocol regards children as victims oftrafficking whether or not they are evidenced as coerced or deceived into theirsituation.The purpose does not always have to be achieved for there to be an offenceof trafficking; it is sufficient for there to be an intention to exploit. The different2 Taken from the UNODC website.5types of exploitation this covers is wide ranging and often includes thefollowing types of conduct: Sexual – frequently through forced sexual exploitation, wherevictims are placed into off-street brothels, forced to see manyclients, and receive either little or no money. Victims may also betransported to clients in hotels or their homes or forced to work onthe streets. They regularly suffer sexual and physical violence andabuse. Whilst it predominantly affects women, sexual exploitationalso involves young girls, boys and men. Forced labour – where victims are forced to work very longhours in hazardous conditions and hand over the majority or all oftheir wages to their traffickers or controllers. Violence and threatsare used against victims or against their families if they fail tocomply. There may be threats made to expose the victim to theauthorities, for example because of their immigration status, or theirpassports are confiscated. Many victims or their families are in debtbondage. In some cases the victim may not immediately be awareof their exploitation when given work, transport andaccommodation, but their wages may be reduced significantly topay excessive contributions for those services which may be poorquality and present safety risks. Domestic Servitude – victims who live and work in householdswhere they are forced to work through threats of serious harm andmay be subjected to physical and sexual assaults. There is oftenrestriction of liberty and movement and victims may not be able toleave their accommodation. In essence it is a form of slavery. Enabling others to acquire benefit - this includes moneyfrom state financial assistance such as child benefit, but alsoincludes any benefit derived by the trafficker such as profit,personal benefit or privilege. Victims are often deceived or coercedinto helping their traffickers or they may be used by traffickersknowing they are too young or disabled to realise why. Organ harvesting – where victims are trafficked in order to selltheir body parts and organs for transplant;Children – children are amongst the most vulnerable victims. Sometimesthey are sold by family members or families are in debt bondage to traffickersand their children are put into forced labour or domestic work where they arevulnerable to sexual or physical abuse. Children may be abducted, or handedover by their parents in the belief that they may have a better life and accessto education. Sometimes trafficking can be hidden under the guise of privatefostering. Children are also vulnerable to being used in criminal enterprises,working in cannabis farms or pick-pocketing (theft) gangs. Some are6unaccompanied asylum-seeking children who can be preyed upon by thosewho exploit them to enable others here to acquire benefits. British childrencan also be vulnerable to traffickers who groom, exploit and sexually abusethem before moving them around other towns and cities where the sexualexploitation continues.Trafficking of human beings should not be confused with ‘’smuggling’’ ofhuman beings. The majority of people who enter the UK illegally have eitherdone so by themselves or have arranged to be smuggled into the country.The next section explains some of the differences.What is smuggling?Whilst victims who are trafficked have little choice in what happens to them,and it is generally against their will or under some sort of false pretence,people smuggling generally takes place with the consent of the person beingsmuggled; often payment is made to the smuggler. Common reasons forindividuals seeking to be smuggled include employment and economicopportunity, or escape from persecution or conflict. Once they have beenmoved across international borders, the relationship with those assisting inthe smuggling ends upon arrival at their destination. Smuggling is a crimewhich involves the illegal entry into a country of which that person is not anational or resident either clandestinely or through deception, such as the useof fraudulent documentsFactors which help distinguish between smuggling and trafficking are: consent - smuggling is a voluntary act and there is normally littlecoercion/violence involved or required from those assisting in thesmuggling exploitation – there is no exploitation by the smugglers of their victimsonce they reach their destination, effectively their relationship ends onarrival at destination. Trafficking victims on the other hand aresubjected to a cycle of exploitation. profits for smuggling are derived primarily from transportation andfacilitation of illegal entry in another country, whereas traffickers profitprimarily from the exploitation of their victims.However, in some cases the distinction between a smuggled and traffickedperson will be blurred and both definitions could easily be applied. The victimmay have started out being smuggled into the country, but during their journeyor when they arrive at their destination it could develop into or becometrafficking.This can happen if someone has started their journey here being a willingparticipant, perhaps travelling here to work in a new job. However, eitherduring their journey or when they arrive, they become vulnerable to traffickers7and are exploited and harmed. During their journey they may be subjected tounsafe conditions whilst travelling to their destination, subjected to sexual orphysical abuse or be forced to participate in other criminal activities. Oftenthere may be more than one person or group involved in facilitating the travelof trafficked victims who may be bought and sold several times in the courseof their journey. It is important to examine the end situation when the victim isrecovered to determine whether someone has been smuggled or trafficked.The role of the CPSThe CPS is the principal public prosecution service for England and Wales,headed by the Director of Public Prosecutions (DPP). The DPP exercises hisfunctions independently, subject to the superintendence of the AttorneyGeneral who is accountable to Parliament for the work of the prosecutionservice. The CPS was set up in 1986 to prosecute cases investigated by thepolice and, in some cases by immigration officers.Whilst the CPS is one part of the criminal justice system, which includesothers such as the police, the courts and defence lawyers, the global nature ofhuman trafficking is such that we frequently work in collaboration with a widernumber of domestic and international agencies. In responding to humantrafficking, our work also brings us into regular contact with non-governmentagencies.Human trafficking cases tend to be serious, complex and require sensitivehandling. They are most likely to be prosecuted by specialist prosecutors whohave experience, expertise and training to deal with them.The police and the Serious Organised Crime Agency (SOCA) are the mainagencies responsible for investigating cases of human trafficking and forgathering the evidence. However, we also work closely with other agenciessuch as the UK Border Agency in building strong cases. SOCA hasresponsibility for the UK Human Trafficking Centre and the VulnerablePersons Team, which provides advice and guidance to police forces ininvestigating cases of trafficking, as well as support and evidentialinterviewing of vulnerable victims of trafficking. The CPS has theresponsibility for deciding in the most serious and complex cases, whether asuspect should be charged with a criminal offence, and, if so, what thecharge(s) should be. The police do not refer every complaint of a criminaloffence to us. However, when the police have a reasonable suspicion that asuspect(s) has committed a criminal offence associated with humantrafficking, they must refer that case to a prosecutor who will make thedecision whether to charge.Early consultation will take place between the prosecutor and the police orSOCA officer to ensure that all possible avenues of evidence are explored,and that the correct charge (s) is identified. We intend wherever possible inthese cases, that the same prosecutor will be responsible for the case frombeginning to end and will work closely with the investigator throughout. Thisdegree of continuity is important to improve the quality of the prosecution.8Prosecutors will also work closely with financial investigators to pursue thefinancial assets of traffickers. Prosecutors will apply for orders to restrain andconfiscate any assets and property traced by investigators.Whilst we do take into account victims and other views, we are not their legalrepresentative and cannot act on their behalf. The CPS prosecutes cases onbehalf of the Crown.The Code for Crown ProsecutorsThe Code for Crown Prosecutors (The Code) sets out how we make decisionsabout whether or not to prosecute. The Code is a public document. We reviewthe cases referred to us by the police (or immigration officers) in line with thetest set out in the Code. The Full Code Test has two stages:The evidential stageWe must be satisfied first of all that there is enough evidence to provide arealistic prospect of conviction against each defendant on each charge. Thismeans that a jury or bench of magistrates or judge hearing a case alone,properly directed and acting in accordance with the law is more likely than notto convict the defendant of the charge alleged.The standard that we use to decide whether or not to prosecute is differentfrom the one applied by the court before it may convict a defendant. For thereto be a conviction, we have to prove the case so that the court is sure of thedefendant’s guilt.If the case does not pass the evidential stage, it must not go ahead, no matterhow important or serious it may be.The public interest stageIf the case does pass the evidential stage, we must decide if a prosecution isneeded in the public interest. A prosecution will usually take place unless “theprosecutor is sure that there are public interest factors tending againstprosecution which outweigh those tending in favour” (Code for CrownProsecutors paragraph 4.16). If the evidential stage is passed, the moreserious the offence or the offender’s record of criminal behaviour, aprosecution is almost certainly required in the public interest.It will usually be in the public interest to prosecute cases of human traffickingbecause of the nature and seriousness of these cases. In accordance with theCode for Crown Prosecutors, each case will be reviewed taking into account anumber of public interest factors which will often be present in cases ofhuman trafficking; these include: that the offence was carried out by a group,9 that the victim was in a vulnerable situation and the suspect(s) tookadvantage of this a conviction is likely to result in a significant sentence a prosecution would have a significant positive impact on maintainingcommunity confidence; the offence was premeditated there was a marked difference in the levels of understanding of thesuspect and the victim and the suspect took advantage of this.But these are only examples and not meant to be exhaustive.However, prosecutors will also have to consider public interest factors whichmay tend against a prosecution; this includes: a prosecution is likely to have an adverse effect on the victim’s physicalor mental health, always bearing in mind the seriousness of the offenceand the views of the victim about the effect of a prosecution on his orher physical or mental health.In deciding whether a prosecution is required in the public interest,prosecutors should take into account “any views expressed by the victimregarding the impact that the offence has had. In appropriate cases, forexample where the victim is a child or an adult who lacks capacity as definedby the Mental Health Act 2005, prosecutors should take into account anyviews expressed by the victim’s family” paragraph 4.18 of the Code. However,victims of exploitation often do not recognise that they are victims, or theymay be under threat; this should be taken into account when hearing viewsexpressed by the victim, victim’s family, or by the Local Authority where achild is in their care.We always think very carefully about the interests of the victim when wedecide where the public interest lies. However we prosecute cases on behalfof the Crown and not just in the interests of any particular individual. Strikingthis balance can be difficult. The views and interests of the victim areimportant, but prosecutors must form an overall view of the public interestwhen deciding on prosecution.In some instances, a prosecution may not go ahead. This does not mean thatthe victim is not believed. Where prosecutors have a responsibility to explaintheir decision to the victim, for example, when they discontinue orsubstantially alter one or more charges in a case, they must comply with theCode of Practice for Victims of Crime and all relevant CPS Guidance. Pleaserefer to the section keeping victims informedThe Threshold TestProsecutors will apply the Full Code Test unless the suspect presents asubstantial bail risk if released and not all the evidence is available at the timewhen he or she must be released from custody unless charged. The10Threshold Test may be used to charge a suspect who may justifiably bedetained in custody to allow evidence to be gathered to meet the Full CodeTest. The full meaning of the Threshold Test and the circumstances in which itwould be applied are fully set out in the Code for Crown Prosecutors.LegislationThis section outlines the main criminal legislation relevant to humantrafficking. More information on the range of offences that can be charged iscontained in Annex ASexual Offences Act 2003 Sections 57, 58 and 59 create three offences of trafficking for thepurposes of sexual exploitation. The offences cover trafficking anotherperson into the UK (section 57), trafficking within the UK (section 58)and trafficking out of the UK (section 59) with the intention ofcommitting a relevant sexual offence on that person. A relevant sexualoffence is any offence under Part 1 of the Sexual Offences Act 2003which includes rape, prostitution and sexual abuse. These offencesapply equally to women and men. It also includes all child sexualoffences which are covered in more detail in the separate section onchild victims and Annex A.Asylum and Immigration (Treatment of Claimants) Act 2004 Section 4 creates offences of trafficking another person into, within andout of the UK for non–sexual exploitation. This includes domesticservitude or forced labour, human organ donation or forcing or enablinganother person to acquire a benefit. This can mean a state benefit, forexample a child benefit, or any advantage derived by the trafficker,which could include financial gain or profit. In circumstances where thetrafficking is difficult to evidence, we can prosecute for holding anotherperson in servitude or requiring them to perform forced labour (seesection 71 Coroners and Justice Act 2009)Immigration Act 1971 Section 25 creates an offence of assisting unlawful immigration to amember state (known as ‘facilitation’). It is a breach of immigration lawby a non-EU citizen (including a breach of another Member State'simmigration law). We will use this offence when someone has beensmuggled into the UK, or where we cannot prove the nature of theexploitation above (for example in cases of pro-active investigationswhere a victim has not yet been subject to exploitation) or whensomeone may have been trafficked into the UK before 2004 whenhuman trafficking laws came into force.11All of these offences cover criminal acts committed in the United Kingdom,regardless of the nationality of the defendant as well as acts committedoverseas. This means that if someone who resides in another countryarranges for the recruitment or transport of a victim to the UK and knows thatthey will be exploited here, we can prosecute that person for offences oftrafficking or smuggling.The offences are either way which means that they can be tried either in amagistrates' court or at the Crown Court. However our guidance toprosecutors advises them that these offences are so serious that they arelikely to lead to a significant sentence on conviction and as such should betried in the Crown Court. On conviction at the Crown Court, a defendant canbe sentenced to a maximum penalty of 14 years imprisonment for eachoffence.The offences are all ‘lifestyle offences’ for the purposes of the Proceeds ofCrime Act. This means that the court can assume that all the assets thedefendant has acquired over the last 6 years are from crime and thedefendant has to prove otherwise. This enables us to confiscate thedefendant’s money.The legislation also enables us to prosecute those who: attempt to commit a trafficking offence; participate as an accomplice in a trafficking offence; or organise or directs others to commit a trafficking offenceOther legislation we can useProsecutors will be aware when dealing with a case of human trafficking thatthe victim may not just be a victim of trafficking. Often victims have beensubjected to other offences committed during the different stages of theirjourney and also during their exploitation. For example, a victim of sexualexploitation may have also been raped and threatened by their trafficker overa period of time. Or a victim of forced labour may be falsely imprisoned,assaulted and threatened with violence or death. This is often done as ameans of gaining and maintaining control of their victim.Prosecutors should consider a range of other offences then with which tocharge suspects, depending on the facts of the case. These other offencesmay be in addition to, or instead of, charges of human trafficking if theevidence obtained by the police supports them and depending on thecircumstances of the case. The choice of charges must reflect the full extentof the criminality and enable the court to sentence accordingly. A moredetailed explanation of how we decide whether to charge and what offencesto charge can be found in The Code for Crown Prosecutors section.Financial powers12In addition to prosecuting the traffickers and others who make financial gainsfrom the exploitation of their victims, we can also disrupt their activity throughrestraining and freezing their assets under the Proceeds of Crime Act 2002 atan early stage of the investigation. The following are offences and powerswhich enable prosecutors and police to do this: Recovery of assets under the Proceeds of Crime Act 2002 toconfiscate and remove assets from a defendant followingconviction. For offences of human trafficking and smuggling thecourt can assume that all the assets the individual has acquiredover the last 6 years are from crime, and the defendant has toprove otherwise. Money laundering under the Proceeds of Crime Act whichcreates three criminal offences which do not have to involvemoney at all; their essence is the movement and use of ‘criminalproperty’ as opposed to money. Forfeiture which involves the seizure of items used to commit acrime. For human trafficking this includes the power to seize andforfeit land vehicles, ships, and aircraft which may have beenused to traffic victims. Seizure under the Proceeds of Crime Act which is a civil powerand allows the Police to seize cash where the amount is over£1000 where they have reasonable cause to believe it has comefrom crime or is intended to be used in the furtherance of crime.An agreement between the police and CPS clarifies the roles andresponsibilities of police and prosecutors, and sets out the workingarrangements for these powers. However, prosecutors will always provideearly advice to the police concerning the investigation, preservation of assets,obtaining and enforcement of confiscation orders and confiscation mattersgenerally and will make restraint and confiscation applications to the CrownCourt on behalf of the police.Building a prosecution caseProsecutors working with investigators ensure that all avenues of enquiry arepursued and that evidence is obtained to construct a strong case to put beforea court. In cases of human trafficking, it is highly likely that prosecutors will beinvolved at an early stage in the investigation to advise the investigator on theevidence, how it can be obtained from overseas and also the restraining ofcriminal property.How we build a prosecution caseWe will work closely with the police and other law enforcement agencies bothdomestically and in the countries where the victim has been trafficked from13and across to make sure that all available evidence from all sources isgathered to prove the case.CPS prosecutors are sometimes required to travel to other countries to liaisewith prosecutors who have an investigative responsibility to obtain evidencefrom abroad. Evidence gathering will be directed through that jurisdiction’sprosecutor. In some cases, we will collaborate with them in order to prosecutetraffickers in the most appropriate jurisdiction. That might mean that thetraffickers are prosecuted in another country although the victims may havebeen exploited here. When that happens, we will work with investigators andprosecutors there to help evidence their case. Eurojust3 will assist in thesecases by facilitating the co-ordination of cross-border investigations andprosecutions and the exchange of information between EU Member States.This is particularly important where offending occurs in more than onecountry.When police to police enquiries to gather evidence from overseas in aninformal manner cannot be used, a formal request for assistance from abroadmust be made through a letter of request, which is a legal document. Theprosecutor will prepare a letter of request and issue it as early as possible inthe investigation. Once evidence is received, it must be reviewed to ensure itis in a form which is admissible and reliable to support the case and present ina court of law in England and Wales.The review process is a continuing process and prosecutors must takeaccount of any change in circumstances in accordance with the Code forCrown Prosecutors. Whenever evidence or information is referred to theprosecutor, it is reviewed to make sure that it is right to proceed with aprosecution. Whilst the CPS and the police work closely together, the finalresponsibility for the decision whether to charge, what the charge should be orwhether a case should go ahead, rests with the prosecutor.The role of victims and witnessesAs with all crime, the CPS recognises the central role of victims and witnessesin achieving successful prosecutions. The victim’s account in court orstatement to the police of what happened to them is evidence and is importantto the case in proving each element of the offence of trafficking. For thisreason it is important to identify trafficked victims at an early stage and ensuretheir safety. We know that specialist support to the victim will be needed incases of human trafficking, for example through counselling. Prosecutors willconsider how best to support them giving evidence in light of the often close,controlling and dependent relationship between the defendant and victim andthe increased likelihood of victim intimidation. But we also recognise thatsometimes trafficked victims may be reluctant to support criminalproceedings; they may be frightened or may not wish to come to court. If we3 Eurojust) was established in 2002. It is a permanent network of 27 experienced prosecutors,one from each EU State, whose task is to improve the effectiveness of cross-borderinvestigations and prosecutions in the EU.14suspect that the victim has been threatened or frightened into not givingevidence, we will ask the police to investigate further. The investigation mayreveal new offences, such as harassment or witness intimidation. Ifnecessary, we will ask the court to delay any hearing so that a thoroughinvestigation may take place before we decide about the future of the case.For victims and witnesses who do decide to give evidence, protection andspecialist support is available from the police and other support organisations.This close co-operation can help prepare and encourage victims before trial.There are also measures which we can apply to the court for in order toprotect victims and witnesses in giving evidence at court. These arediscussed in more detail in the section Victims and Witnesses.What if the victim does not wish to give evidence?If trafficked victims decide not to give evidence, we can still charge andprosecute offenders. Other corroborating or supporting evidence describedbelow will assist in proving a case. This may be possible in the followingsituations: Where the victim has made a complaint and a statement to the policebut does not wish to give evidence, we will consider whether it is stillpossible to continue without the victim’s evidence. In very limitedcircumstances, the law allows us to use the victim’s statement in courtwithout calling the victim to give oral evidence, for example where thevictim is in fear. This is called hearsay evidence but it is a matter for thecourt to decide. If there is sufficient other corroborative evidence, thatis evidence which supports or confirms the victim’s account, such assomeone who is able to give direct evidence of what they saw orheard, or medical and scientific evidence which links the victim to thesuspect, it may be possible to prosecute. Where the victim makes no complaint or report to the police. As long asthere is evidence which proves all the elements of the offence withoutthe need for the victim to make a complaint, we can still proceed to aprosecution for human trafficking. For example, where there is policesurveillance evidence showing the suspect (s) transporting a victim,vehicle registration details which link the suspect to the car andpremises where the victim may have been exploited, eg a brothel,together with recovery of exhibits such as false passports, mobilephone text messages or recovery of large sums of money; or The prosecutor might consider other offences which can still beevidenced without the victim’s testimony, such as smuggling, moneylaundering, forged or false document offences, causing or incitingprostitution for gain.Other evidence to prosecute15When investigating a case of human trafficking, the police will always look forcorroboration or supporting evidence such as medical or scientific evidence,CCTV evidence, or eyewitnesses to events. Other evidence the police willobtain to prove the offence will include the following: Suspects. Obtaining reference material from suspects is of primaryimportance. Where identification may be an issue, photographs can betaken and where physical features, tattoos or jewellery items aredescribed in victim or witness statements, these will be photographedto corroborate victim statements. Forensic for scene to scene links. It may be possible to forensicallylink for example, vehicles to premises, suspects and victims throughuse of fingerprints, DNA or contact trace exhibits, even when suspectsare not recorded. Imaging through conventional still photographssupported by video and other imaging techniques can confirm featuresidentified in victim statements. Premises Examination of scenes from CCTV and use of fingerprintand DNA to link suspects and victims with premises. Searches ofpremises to recover evidence could include personal documents,passports, travel documents, family papers and documents relating tovictims and potential victims home countries, mobile phones, financialdocumentation, vehicle documents, documents detailing associates Vehicles which may have been used to transport and move victimsaround. DNA recovery may be used to identify individuals with accessto vehicles and fingerprints. Documents Conventional document recovery during searches can bevery valuable in proving the commercial nature of human traffickingoffences. IT and communications equipment offer further opportunitiesfor evidence recovery. In cases of fraudulent document production itmay be possible to identify processes and individuals. Downloadingmobile phone data can also confirm contacts, dates and times.Victims and WitnessesWe have a duty to provide victims and witnesses with appropriate protectionand support to ensure their safety and to improve their ability to give their bestevidence. Whilst the experiences of victims of human trafficking will differ, it isimportant to recognise the serious impact of these crimes on the individual.Victims may have a range of health, sexual health, emotional and/or mentalhealth issues. The welfare of the victim should always be paramount; it is forthis reason that that specialist support will be needed from support providers.A person may be considered a victim of trafficking regardless of whether theperpetrator is identified, apprehended, prosecuted or convicted andregardless of the familial relationship between the perpetrator and the victim.16Loss of freedom is a defining feature of trafficking. For example, traffickedvictims are often not allowed to leave the premises where they are held or ifthey do, they are accompanied by a trafficker. Victims suffer frequent andsevere abuse, both physical and psychological. Violence and physical harmare the hallmarks of trafficked men and women. But we are aware that victimscan also suffer “softer” forms of coercion; their freedom isn’t quite soconstrained, they are given some “payment” from their earnings, they can bedeceived into believing they are coming here for a better life.Young people and children living in the UK can also be targets for traffickersand become victims of sexual exploitation. For some this abusive sexualrelationship may begin and end with their exploiter ‘boyfriend’; but more oftenit will lead to coercion into sexual activity with a wider group of abusers. Somemay be moved from house to house, city to city – trafficked within the UK –and some may be exploited by their abusers commercially. Exploiters canalso be women, who appear as a carer or friend of the victim. See ChildVictims.We know that victims often face barriers in coming forward and givingevidence. They do not always wish to, and they are sometimes unable to, cooperatewith the authorities. Often they are in fear of the consequences ofgiving evidence against their traffickers, because of the threat of what mighthappen to them or to their families. They also may have a distrust of theauthorities because of the culture or experiences in their home country.Victims may also be facing conflicting interests such as pending applicationsfor asylum which might impact on their willingness to engage.Prosecutors should also recognise the diversity of victims. As experiences oftrafficking are undoubtedly different and affected by the victim’s ethnicity, age,immigration status, religion and culture, the safety and needs of each victimmust be assessed on an individual basis.The National Referral MechanismThe early identification and protection of victims are a priority. Improvementsto the identification of victims and their subsequent referral through a NationalReferral Mechanism into appropriate support and protection have helped intheir recovery from exploitative situations. In implementing the Council ofEurope Convention on Action against Trafficking in Human Beings in April2009,the UK Government introduced mechanisms to identify and protectvictims of trafficking and to safeguard their rights. It created provisions forsupport to victims through a 45 day recovery and reflection period for allidentified victims and temporary one-year renewable residence permits incircumstances where they assist the authorities or support criminalproceedings or owing to their personal circumstances.For victims of trafficking this means a first responder (an authorised agency)who encounters them can make a referral to either the UK Human TraffickingCentre (for EU victims) or the UK Border Agency (for non EU victims) to17access these provisions. The potential victim’s case is considered and, ifapproved, the victim is given an extendable 45 day reflection period duringwhich time they are entitled to a range of support services, and will not beremoved from the UK. Accommodation and support is provided through arange of support providers.At the end of the reflection period, a conclusive decision will be made and ifthe victim does not have any leave to remain in the UK, they will beconsidered for a residence permit based on whether the victim is to supportcriminal proceedings, or whether their personal circumstances warrant a grantof leave to remain in the UK.It should be noted that the referral form completed by a first responderrecording their encounter with the victim may, in some circumstances, bedisclosable to the defence as information on the form might go to thecredibility of the victim or other prosecution witnesses.More detailed information on these provisions can be found at Council ofEurope ConventionCode of Practice for Victims of CrimeVictims have legal rights under the Code of Practice for Victims of Crime toreceive certain levels of service from police forces, the CPS and from othercriminal justice agencies. The Code of Practice applies to any person who hasmade an allegation, or had an allegation made on their behalf, of a crime thatfalls within the National Crime Recording Standards. It is immaterial that theperpetrator has not been arrested or charged. The Code represents aminimum level of service in England and Wales to be provided to victims by awide range of organisations.The CPS has the following obligations: To ensure that victims are informed of charging decisions taken by theCPS. In cases where, following discussions between an investigatingofficer and a Crown Prosecutor, the decision is taken that there isinsufficient evidence to bring any proceedings, we will notify the victimof this fact within one working day. Where there is a decision to substantially alter or discontinue anycharge, the CPS must notify a vulnerable or intimidated victim withinone working day and for other victims within 5 working days. In certain cases, for example those involving child abuse, or all sexualoffences, the prosecutor must offer to meet the victims to explain aprosecution decision not to bring any proceedings in respect of criminalconduct following the provision of a full evidential report by the police tothe CPS for a decision on charge. This also applies to cases where adecision is made to discontinue or substantially alter charges. See alsokeeping victims informed.18 In cases where the victim is a child, then parents / carers should benotified. Where a victim is identified as potentially vulnerable or intimidated, theCPS must consider making an application to the court for a specialmeasures direction. The outcome of that consideration must berecorded. Representatives of the CPS should introduce themselves to victims atcourt, answer any questions victims may have about court proceduresand give an indication where possible of how long they will have to waitbefore giving evidence. In the event of delays to criminal proceedings, the CPS must, whereverpossible, explain the reason for the delay and tell the victim how longthe wait is likely to be. The CPS must pay expenses that the CPS has decided are due to thevictim not later than ten working days after receipt of claim form. The CPS must answer any questions the victim has about thesentence in their case Must provide the Witness Care Units with copies of the List ofWitnesses to attend Court as soon as these are finalised to notifyvictims if they are required to give evidence. Respond to requests for information from the Criminal InjuriesCompensation Authority or the Criminal Injuries Compensation AppealsPanel no later than 60 working days after the day on which the CPSreceive the request.Further information on obligations to victims can be found at the Code ofPractice for Victims of CrimeWhat we can do to help victims and witnesses at courtThe early identification of a vulnerable or intimidated witness by the police andearly discussion with the CPS prosecutor are essential to the conduct of thecase. A vulnerable or intimidated witness is a witness whose evidence is likelyto be diminished by reason of fear or distress. The police have the primaryresponsibility for alerting the prosecutor that the case involves a vulnerable orintimidated witness. Having identified that the witness is vulnerable orintimidated, the police can then video record the victim’s evidence-in-chief forpresentation at court. Video recorded cross-examination can also beconsidered admissible if the witness has already been permitted to give theirevidence in chief on video prior to the court case. In all relevant cases, thewitness’s needs should be discussed at the meeting with the prosecutor toimprove case progression and provide a level of reassurance for the victim orwitness.Once victims have made the decision to support a prosecution, there are anumber of measures the prosecutor can employ to assist:Special Measures19Prosecutors can make an application to the court for a range of measures tosupport and protect trafficked victims giving evidence against theirperpetrators. This is particularly important as we realise that many victimstake significant risks in giving evidence. These are called “Special Measures”and include screening the victim from the defendant, giving evidence through live link, clearing the public gallery In some instances, not revealing the victim’s identity when givingevidence. This would only be appropriate in cases where thetrafficker did not know the identity of the victim.Other measures We can apply for reporting restrictions under section 46 of the YouthJustice and Criminal Evidence Act 1999 to restrict media coverage ofcases that reveal a witness’s identity and may create safety issues. Where the victim wishes to remain in their home country, the prosecutorcan make an application under section 32 Criminal Justice Act 1988 forthem to give evidence via a video link from there. However evidence maynot be given without leave of the court. It is our responsibility to protect victims from unwarranted or irrelevantattacks on their character and ask for the court’s intervention where crossexaminationis considered to be inappropriate or oppressive. Prosecutors can also in certain circumstance use powers under theSerious Organised Crime and Police Act 2005 to provide immunity fromprosecution or sentence discounts for those who co-operate with theauthorities.However, whilst it is the prosecutor’s role to make an application to the courtfor these measures, it is for the judge to decide whether to grant theapplication. In considering whether to do so, the judge will seek to balance thevictim’s rights against the rights of others such as the defendants. The Courtwill seek to act in the overall interests of justice.Trafficked victims whose first language is not English will always be affordedthe use of an interpreter when giving their evidence in court. The CPS willonly engage interpreters who are competent, qualified and security vetted.The victim must be afforded the opportunity to make a Victim PersonalStatement (VPS) by the police. It allows a victim to explain how a crime hasaffected them personally. Child witnesses who are victims should also begiven the opportunity to make a VPS after completing a video-recordedinterview or written statement.20Keeping victims informedWe understand how important it is for victims to be kept informed about theprogress of a case and about dates of court hearings or other important casedevelopments. For victims of trafficking that information will usually be passedto the senior investigating officer who will notify the victims’ support provider.That same officer will also keep the victim informed about the outcome of thecase – the verdict and sentence.Under the Code of Practice for Victims of Crime, the prosecutor must tell avictim if we decide that there is insufficient evidence to bring a prosecution, orif we decide to drop a case, or substantially to alter the charges. In suchcircumstances, we will explain to a victim why we have made these decisions.Normally we will do this by writing a letter to the victim.In a case of human trafficking, the prosecutor who made the decision to dropor substantially alter the charge will notify the victim and will also offer to meetthe victim to explain personally the reasons for the decision. Where aprosecutor has made a decision not to charge during a face-to-faceconsultation with a police officer (that is, without a full, written evidentialreport), the police officer must notify the victim.Child victimsA child is a person under 18 years of age. Child trafficking is the practice oftransporting children into, within and out of the UK for the purposes ofexploitation.Identifying child trafficking and exploitationMany children are trafficked and exploited though various types of controlsuch as violence, the threat of violence, sexual abuse, alcohol and drugabuse, emotional abuse, manipulation through twisting cultural practices andimprisonment to suppress victims and ensure their compliance. Some aresold by family members or the child or family might be in debt bondage,others maybe coerced through more subtle means. They may come to theattention of the authorities as unaccompanied asylum seeking childrenidentified at ports of entry or children identified by children’s services or localauthorities. Those who are trafficked here into criminal activity are oftenidentified through the police or local authority.Whilst the UK is primarily a destination state for human trafficking, childrenborn, or normally resident in the UK can be trafficked within the UK, that ismoved within the UK, for sexual exploitation. Internal trafficking ischaracterised by the recruitment, grooming, or other forms of coercion ofyoung girls or boys leading to sexual exploitation by organised crime gangs inthe UK. Investigations may arise in circumstances where a child has gonemissing (often, but not limited to, children in local authority care). It ofteninvolves coercion by an individual who is older or more powerful than the21victim and can range from swapping food, drugs, alcohol or cigarettes forsexual favours. They may be sexually abused before being taken to othertowns, cities and venues where the sexual exploitation continues.However, not all cases of child sexual exploitation and abuse will beconsidered to be internal trafficking. Where evidence obtained byinvestigators supports an offence of trafficking within the UK, this will beconsidered by the prosecutor. Where other serious sexual offences involvingthe exploitation of children under 18 are disclosed, the prosecutor will selectthe most appropriate charges to fully reflect the criminality. These offencescarry significant penalties and may be charged if the evidence and criminalbehaviour does not support offences of human trafficking. Some of theseoffences are identified in Annex A.If a child is identified by police during operations, the Children’s Services willbe notified immediately so that a child protection plan can be put into placeand a strategy discussion co-ordinated. Children’s Services are responsiblefor accommodating the child and will action a section 47 investigation at theappropriate time.We know that there is also a risk that trafficked children may go missing fromLocal Authority care. A number of local authorities have set up multi-agencyarrangements to enhance their collective response for safeguarding andpreventing trafficked children from going missing.When to prosecuteThe use of a child in a criminal enterprise is a form of child abuse. Childrenwho may be forced into sexual exploitation, coerced into committing crimes orused by adults to commit offences will be treated by the CPS as a victim.More detailed guidance to prosecutors expands on these provisions. In caseswhere young victims are facing charges for offences committed whilst in acoerced situation, for example when they have been trafficked, the CPS willintervene. The prosecutor will give consideration to discontinuing aprosecution, on public interest grounds, where information or evidence hasbeen obtained to support that. Further information on this appears in thesection Prosecuting suspects who might be trafficked victims.The trafficking and exploitation of children will always be considered serious.Supporting child witnessesGuidance has been issued to prosecutors on prosecuting cases involvingchildren and young people as victims and witnesses of crime and, inappropriate circumstances, as defendants. This advises prosecutors that theymust ensure that when dealing with cases involving children, the child is givenappropriate support and there is consideration as to what is best for the childif a criminal prosecution proceeds. Examples of this include expediting cases and dealing with them with fairness and sensitivity;22 where children have been sexually exploited, treating them as victimsof abuse; consideration of the use of children as witnesses, witness care and ofspecial measures to enable them to give evidence in the best waypossible in terms of quality of their evidence and reducing trauma tothem.There can be considerable benefits to be gained where agencies andauthorities establish close working relationships and share information.Prosecutors should therefore, where independence and objectivity are notcompromised, positively engage with other authorities and agencies tosafeguard children. A key forum for this is the Local Safeguarding ChildrenBoard.Special measuresThe Home Office Guidance “Achieving Best Evidence in CriminalProceedings: Guidance for Vulnerable or Intimidated Witnesses, includingChildren” provides detailed recommended procedure for interviewing childwitnesses. It considers planning interviews, decisions about whether theinterview should be video recorded or a statement taken, preparing thewitness for court and subsequent court appearances, pre-trial therapy andspecial measures.The question of special measures for child victims and witnesses should becarefully considered by the prosecutor in discussion with the police as part ofthe charging advice. Child witnesses under the age of 17 will automatically beeligible for special measures under section 16 of the Youth Justice andCriminal Evidence Act 1999. Prosecutors should refer to Achieving BestEvidence for guidance on Special Measures.At court, there is a presumption that the child should give evidence throughvideo recorded evidence and a live link to keep the child out of the court room.If evidence is to be given by live link, a supporter should sit near the witness.Specialised child witness supportIn some cases, there may be consideration of pre-trial therapy for child victimsto provide them with both emotional support and counselling to decrease theirdistress or psychological symptoms and behaviour, or improve their personalfunctioning. Whether a vulnerable or intimidated witness should receivetherapy before trial is not a decision for the police or prosecutors. However,prosecutors should have regard to multi-agency guidance atProvision of Therapy to Child Witnesses Prior to a Criminal Trial.Support is available in some areas from specialised child witness supportschemes and studies suggest that children benefit greatly from such supportbefore, during and after trials where they exist.23Further guidance can be found in the guidance Safeguarding Children andYoung People from Sexual Exploitation (June 2009).This guidance is aimed at Local Safeguarding Children Board (LSCB)partners, practitioners and other professionals working with children andyoung people and provides more information on the risk factors and models ofsexual exploitation. It is intended to help them safeguard and promote thewelfare of children and young people who are at risk of, or who are being,sexually exploited. It is supplementary to, and should be used in conjunctionwith, the Government’s statutory guidance, Working together to safeguardchildrenAge disputesYoung people may have no identifying information on them, their documentsmay be false or they may have been told to lie about their age to evadeattention from the authorities. Some victims may claim to be adults when theyare in fact under 18 years of age.Where it is not clear whether the young person is a child (i.e. under 18 yearsof age) then in line with the United Nations Convention of the Rights of theChild, the benefit of the doubt should be given and the young person shouldbe treated as a child. This is re-enforced in the Council of Europe Conventionon Action against Trafficking in Human Beings.Where there is uncertainty about a suspected victim’s age, Children’sServices will be responsible for assessing their age. The Local Authority inwhose area the victim has been rescued will have responsibility for the care ofthe child as required by the Children Act 1989.Where a person is brought before any court and it appears that they are achild or young person, it is the responsibility of the court to make due enquiryas to their age. The age presumed or declared by the court is then regardedto be their true age (under section 99 Children and Young Persons Act 1933and section 150 Magistrates’ Courts Act 1980).The court should consider any evidence of age that is available at the hearingof the case, which may include documentary evidence such as a passport,school records or a PNC printout verified by fingerprints as well as oralevidence from people who know the child.For further reference on age assessment refer to R (on the application of A) vLondon Borough of Croydon [2009]; R (M) v London Borough of Lambeth[2009] This case concerned the duty imposed on local authorities in providingservices under the Children’s Act 1989 in instances where the local authoritiesdisputed age and assessed them as adults.24Victims of forced labour and domestic servitudeWhilst there is greater awareness of trafficking for the purpose of sexualexploitation, there is less understanding and awareness of trafficking forforced labour and domestic servitude.Trafficking for forced labour or domestic servitude covers a wide spectrum ofexploitative situations ranging from those who have been locked up orseverely restricted in their freedom of movement, and physically and sexuallyabused, to those who are deceived about the conditions of their contract;receive little or no financial rewards and reside and work in poor conditions.All forced labour includes unacceptable working conditions, but not all suchworking conditions constitute forced labour. Forced labour alone is just one,but often the most serious element of the exploitation experienced bytrafficking victims. It crucially implies the use of coercion and lack offreedom/choice afforded to the victim (as is implicit in the use of the term‘trafficking’). The International Labour Organisation (ILO) has suggested sixelements which, either individually or together, can indicate forced labour: threats or actual physical harm; restriction of movement and confinement to the workplace or to alimited area; debt-bondage; withholding of wages or excessive wage reductions, that violatepreviously made agreements; retention of passports and identity documents (the workers can neitherleave nor prove their identity and status); threat of denunciation to the authorities where the worker is of illegalstatus.Migrant workers – whether illegal migrants or legal migrants working illegally –are most at risk of exploitation and traffickers use regular migration routes andwork visas, but then utilise debt bondage, the removal of documents andmigrants’ uncertainty about their rights and status to subject victims to forcedlabour. Many come expecting certain kinds of work but end up doing others.Section 4 of the Asylum and Immigration Act 2004 creates specific offences oftrafficking another person for the purposes of domestic servitude or forcedlabour (behaviour contravening Article 4 of the European Convention ofHuman Rights – slavery or forced labour). Under this legislation, CPSprosecutors have prosecuted for a range of exploitative situations includingtrafficking and exploitation of overseas domestic workers, agricultural workers,road labourers, restaurant workers and child begging.A further, specific offence which criminalises servitude and forced labour isSection 71 of the Coroners and Justice Act 2009 which creates an offence ofholding another person in slavery or servitude or requiring them to performforced or compulsory labour. This offence gives further and specific protectionto those who may be the victims of forced labour or servitude. The offence is25available in circumstances where the person was not trafficked, for examplethey might be a British Citizen or came to the UK voluntarily, or the traffickingelement cannot be proved to the criminal standard. This also carries the samepenalties as trafficking for forced labour.One of the challenges we face in bringing prosecutions against those whotraffic and exploit their employees lies in the fact that few people are willing tocome forward and complain to the police. Exploited migrant workers do notalways consider themselves to be ‘victims’ of a crime. They may be awarethat they are paid less than the minimum wage and work long hours, butconsider their situation here to be better than that offered in their homecountry. We want victims to know that our aim is to prosecute those who havecommitted these criminal offences against them. Part of that process mustinclude raising awareness of victim’s rights and how they may have beendeceived. Any case that involves the exploitation of a migrant worker will betreated seriously by prosecutors and where the evidence supports a criminaloffence, we will usually prosecute.We recognise that there may be barriers to victims supporting criminalproceedings, particularly where there may be uncertainty about theirimmigration status. Where victims have been identified and referred throughthe National Referral Mechanism (see section on victims and witnesses) theymay be entitled to a residence permit if they assist in criminal proceedings orwhere their personal circumstances may warrant a grant of leave to remain.There are a number of support providers who provide dedicated support andassistance to victims of labour exploitation.The CPS is working with the Gangmaster Licensing Authority (GLA) andACPO to improve the identification of victims and increase the numbers ofinvestigations and prosecutions against exploitative employers in agriculturaland packing industries. The GLA is in an advantageous position to identifypotential gangmasters who might be committing offences of trafficking andexploiting victims of forced labour.Acceptance of Pleas and SentencingAcceptance of PleasDefendants may want to plead guilty to some, but not all, of the charges.Alternatively, they may want to plead guilty to a different, possibly lessserious, charge because they are admitting only part of the crime.Prosecutors should only accept the defendant’s offer of a guilty plea (or pleas)if they think the court is able to pass a sentence that matches the seriousnessof the offending, particularly where there are aggravating features. Forexample, the defendant may offer pleas to offences other than humantrafficking offences such as rape or false imprisonment, which carry moresevere punishment than human trafficking. A plea to such offences in the26appropriate case may be acceptable. Prosecutors must never accept a guiltyplea just because it is convenient.In considering whether to accept the pleas offered, prosecutors should ensurethat the interests and views of the victim where possible, are taken intoaccount when deciding whether it is in the public interest to accept the plea.However the decision rests with the prosecutor.It must be made clear to the court on what basis any plea is advanced andaccepted. In cases where a defendant pleads guilty to the charges but on thebasis of facts that are different to the prosecution case, and where this maysignificantly affect sentence, the court should be invited to hear evidence todetermine what happened, and then sentence on that basis.Where a defendant has previously indicated that he or she will ask the courtto take an offence into consideration when sentencing, but then declines toadmit that offence at court, prosecutors will consider whether a prosecution isrequired for that offence.Particular care must be taken when considering pleas which would enable thedefendant to avoid the imposition of a mandatory minimum sentence. Whenpleas are offered, prosecutors must also bear in mind the fact that ancillaryorders can be made with some offences but not with others.Prosecutors must comply with the Attorney General’s Guidelines on theAcceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercisewhich sets out in greater detail the extent of prosecutors’ duties and role in theacceptance of guilty pleas.The Prosecutor’s Role in SentencingSentencing is a decision for the court but prosecutors have a duty to offerassistance to the sentencing court in reaching its decision as to theappropriate sentence. The appropriate disposal of a criminal case afterconviction is as much a part of the criminal justice process as the trial. Thiswill include drawing the court’s attention to the following factors: any aggravating and mitigating factors disclosed by the prosecutioncase; any Victim Personal Statement; where appropriate, evidence of the impact of the offending on acommunity; any statutory provisions, sentencing guidelines or guideline caseswhich may assist; and any statutory provisions relating to ancillary orders, for exampleconfiscation, forfeiture, or deportation of the defendant(s).27The prosecuting advocate may also offer assistance to the court by makingsubmissions as to the appropriate sentencing range in light of these factorsand in accordance with the Sentencing Council.Before being sentenced, a defendant is entitled to make a plea in mitigation.We will challenge defence mitigation which is misleading, untrue or whichunfairly attacks the victim’s character.Some trafficking cases have established guidelines for judges to follow incases where there may be similar aggravating factors, although there are noguarantees that the court will follow them. When judges pass a sentencewhich has similar aggravating or mitigating factors but the sentence appearsto fall significantly lower than the guidelines advise, we can consider referringthis case to the Attorney General to review the sentence for appealing as anunduly lenient sentence (see below)Ancillary or Additional OrdersProsecutors will also consider and apply for other ancillary orders to protectvictims of crime from future offending. Ancillary, or additional, orders can beused to address the harm caused by offenders and ensure that effectivemeasures are put in place to prevent repeat victimisation. They can be usedat different stages of the investigation or prosecution process or applied for atthe sentencing stage.These are just a few examples of some of the Ancillary Orders we can applyfor which are relevant to human trafficking: Risk of Sexual Harm Order (RSHO); this is a civil preventative orderused to protect children from the risks posed by adults engaged insexual activity with a child; Serious Crime Prevention Orders (SCPOs) Cash seizure and Forfeiture order; Restraint Order which has the effect of freezing property anywhere inthe world that may be liable to be sold to satisfy a Confiscation Order; Deportation where a foreign national who is subject to immigrationcontrol if he or she has been convicted of an offence, Deprivation of property which enables the court to deprive an offenderof property, used, or intended to be used to commit an offence, forexample a vehicle. Restraining Order on acquittal Registration on the Sex Offenders Register European Arrest Warrant which is a request made between judicialauthorities of the EU for the extradition of persons to be prosecuted,sentenced, or to serve a sentence already imposed. Financial Reporting Orders,28Appealing unduly lenient sentencesIf the judge passes a sentence which the prosecution considers to be undulylenient because it does not reflect the seriousness of the offence, the CPS willask the Attorney general to review the sentence. This must be done within 28days of the sentencing decision. If the Attorney General thinks the sentence isunduly lenient, the Attorney General can refer it to the Court of Appeal.However, not all of the Human Trafficking legislation is capable of beingreferred as an unduly lenient sentence; trafficking for non-sexual exploitationunder section 4 Asylum and Immigration Act 2004 is not an offence which isreferable.The application to the Court of Appeal must be made within 28 days of thesentence. The Court of Appeal decides whether or not the sentence is undulylenient and, if it is, whether to increase the sentence.CompensationThere are a number of mechanisms by which a victim might seekcompensation: Through prosecutors requesting a compensation order upon convictionin appropriate cases under sections 130 -132 of the Powers of theCriminal Courts (Sentencing) Act 2000, which provides forcompensation orders against defendants. Through confiscation and compensation under section 13(2) of theProceeds of Crime Act 2002. Here, the court must determine anyapplication for confiscation before considering a compensation order,however, the court has a discretion under section 13(5) and (6) POCA2002 to make both a compensation order and a confiscation orderagainst the same person in the same proceedings if it believes that thedefendant will have sufficient means to satisfy both orders in full.Prosecutors can apply for these post conviction. However, alternativeavenues to claim compensation are: Through the victim suing the offender in the civil courts. Civil litigationenables the victim to hold a defendant personally accountable for hisactions, though funding for legal representation to pursue a civilcompensation claim is often a bar to this course of action. Through the Criminal Injuries Compensation Authority (CICA). Thisscheme compensates for personal injuries awards to victims of crimeand fatal injury awards to immediate family members of a victim whohas died as a result of a violent crime. To claim, the victim must havesustained physical or mental injuries as a result of a violent crime. Avictim claiming mental injury without physical injury must demonstratethey were put in considerable fear of immediate physical harm.29For further helpful practical guidance on mechanisms to claim compensation,please refer to Rights and Recourse – A Guide to Legal Remedies fortrafficked Persons in the UK, published by Eaves and Anti-Slavery. This guidealso provides advice on the mechanisms to pursue compensation under civillaw and, for victims who have been exploited for forced labour or domesticservitude, through Employment Tribunals.Prosecuting suspects who might be traffickedvictimsWe are aware that adults and young people may be arrested by the policeand charged with criminal offences, but who might be trafficked victims. Thismost frequently arises when they have been trafficked or smuggled here tocommit criminal offences, but can arise in circumstances where they areescaping from their trafficking situation.If the circumstances of the arrest or the evidence referred to the prosecutorsuggest that someone may have been trafficked, we will ask the police tomake relevant enquiries and obtain further information. Our guidance advisesprosecutors that when reviewing a case in which there are suspicions that thesuspect might be a victim of trafficking, they should cause enquiries to bemade and obtain further information about the circumstances in which thesuspect was apprehended. Information may also be considered from othersources, such as a non government organisation that supports traffickedvictims.If new information or evidence supports the fact that the suspect has beentrafficked and has committed the offence whilst in a coerced situation, there isa strong public interest to stop the prosecution. Where there is clear evidencethat the suspect has a credible defence of duress, the case should bediscontinued on evidential grounds. [But see Children and Youths sectionbelow]The guidance provides clarity for prosecutors about the circumstances of theperson’s situation which might support a defence of duress in law, relevantfactors when deciding where the public interest lies, and clarity around themore subtle forms of coercion exercised by traffickers and exploiters. Thisguidance has been recognised by the Courts in the case of R v O [2008]EWCA Crim 2835 which highlights the need for prosecutors and defencelawyers to take all reasonable steps to identify victims of trafficking and bepro-active in causing enquiries to be made.However, a prosecutor can only take these steps if they have information fromthe police or other sources that a suspect might be a victim of trafficking andis only relevant where the criminality is as a direct consequence of thetrafficking situation. There must also be consideration of the extent to whichthe victim was compelled to undertake the unlawful activity.30Identification and referral through the National Referral Mechanism shouldassist in the detection of victims of trafficking before they are arrested orcharged. Where victims have received either a reasonable grounds decisionor a conclusive grounds decision that they are a trafficked victim, this shouldbe taken into account when considering the decision to proceed with aprosecution.The CPS cannot give a guarantee of immunity from prosecution to those whoare apprehended and arrested by the police who later turn out to be trafficked.The statutory obligations placed on the CPS by the Prosecution of OffencesAct 1985 require Crown Prosecutors to review each case received from policeinvestigators in accordance with the Code for Crown Prosecutors.If a suspect has either been convicted of, or pleaded guilty to a criminaloffence but has not yet been sentenced, and it comes to light that they hadcommitted the offence as a direct consequence of their trafficking situation,the suspect’s legal representative must make relevant representations to thecourt. If the CPS were made aware of any individual cases involvingunrepresented defendants, the CPS would then consider a further review ofthose cases.Children and youthsChildren are often trafficked to be exploited in criminal activities. Their firstencounter then is likely to be with law enforcement and they may be reluctantto disclose the circumstances of their exploitation for fear of reprisal from theirtraffickers. Prosecutors should be alert then to the circumstances of theirarrest and be pro-active in causing enquiries to be made (See R v O [2008]EWCA Crim 2835)Where young people are involved and where there is a credible suspicion thatthe child or youth might have been trafficked and exploited through criminalactivity, then that would generally provide a defence of duress. If newinformation or evidence supports the fact that the child or youth has beentrafficked and has committed the offence whilst in a coerced situation, thenthere is a strong public interest to stop the prosecution.However, there must be consideration of whether the criminality is as a directconsequence of their trafficking situation.31ComplaintsAnyone who has a complaint about the way they have been treated by theCPS, or who feels that the criminal justice system has let them down anddoes not know who may be responsible, can write to the Chief CrownProsecutor for the CPS Area where they live or where the investigation hasoccurred. The CPS has a complaints policy, and a leaflet describing theprocedure to follow which can be obtained from the local CPS office.Breaches of The Code of Practice for Victims of Crime should be referredinitially to the Crown Prosecution Service to be dealt with under ourcomplaints procedures. If the complainant remains dissatisfied, the complaintcan be investigated and reported on by the Parliamentary Ombudsman.Contact points for the CPS are printed on the back cover of this document.ConclusionThe CPS is committed to playing our part in improving the way that cases ofhuman trafficking are dealt with in the criminal justice system and toincreasing the number of cases that we prosecute. We want victims and thepublic to have confidence in the way in which we review and progress cases.We hope that this document will help those who support trafficked victims,whether professionally or personally, victims themselves and the generalpublic to understand the work of the CPS, how we make our decisions andthe different stages of the prosecution process.We will continue to work with our colleagues in the criminal justice system andthe third sector at international, national and local levels to help us developbest practice.We will review this policy statement regularly so that it reflects current law andthinking. We welcome any comments and observations that help us to do this.Comments and suggestions can be made to the:Crown Prosecution ServiceStrategy and Policy DirectorateRose CourtLondone-mail: hqpolicy@cps.gsi.gov.uk32Annex ALegislation for cases involving victims ofhuman traffickingLEGISLATION OFFENCESexual Offences Act2003Section 57Section 58Section 59Section 52 and 53Section 53ASection 1Sections 4 – 14Section 47Section 48Section 49Trafficking into the UK for sexual exploitation;Trafficking within the UK for sexual exploitation;Trafficking out of the UK for sexual exploitation;Causing or inciting and controlling prostitution forgain;Paying for the services of a prostitute subjected toforce or exploitation;RapeRape and other offences of causing sexual activityand sexual assault against children u/18.Paying for the sexual services of a childCausing or inciting child prostitutionControlling or arranging child prostitution33Asylum and Immigration(Treatment of Claimants)Act 2004Section 4(1), (2) and (3) Trafficking into (1), within (2) and out of (3) the UK forexploitation: slavery or forced labour, human organdonation, to provide services or provide anotherperson with benefitsCoroners and JusticeAct 2009Section 71Holding another person in slavery or servitude orrequiring them to perform forced or compulsorylabourImmigration Act 1971Section 25 Facilitation of immigration law (smuggling)Sexual Offences Act1956Section 33ASection 34Sections 35 and 36Managing or assisting in the management of a brothelTo let premises for use as a brothelAllowing a tenant to use premises as a brothel or forthe purposes of prostitutionOffences against thePersons Act 1861Section 16Section 47Section 20Section 18Threats to killAssault occasioning actual bodily harmUnlawful wounding / inflicting grievous bodily harmUnlawful wounding / inflicting grievous bodily harmwith intentCommon law KidnapFalse imprisonmentAiding and abetting a criminal offenceProceeds of Crime Act2002Sections 327, 328 and329Money launderingViolent Crime ReductionAct 2006Section 54Forfeiture to seize and forfeit land vehicles, ships andaircraft used for the trafficking of human beingsAbduction Act 198434Section 2 Child abductionInternational InstrumentsThe European Convention on Human Rights (ECHR) was incorporated intoUK law by the Human Rights Act 1998.The Protocol to Prevent, Suppress and Punish Trafficking in Persons,especially Women and Children supplementing the United NationsConvention on Transnational Organised Crime (Palermo 2000)The International Labour Organisation (ILO) Conventions No 29 and 182The Council of Europe Convention on Action Against Trafficking in HumanBeings 2005.Convention Against the Elimination of Discrimination Against Women(CEDAW)United Nations Convention on the Rights of the ChildAnnex BList of AgenciesThe following agencies provide support and / or advice to victims ofhuman trafficking:11 MillionAFRUCAAmnesty International UKAnti-Slavery InternationalAshiana, SheffieldBarnardo's35CARECity HeartsComic ReliefCROPDePaul TrustEaves Housing for Women (POPPY Project)ECPATEnglish Collective of ProstitutesHibiscusHope for JusticeInternational Office of Migration (IOM)KalayaanMedaille TrustMigrant HelplineNational Association of Citizens Advice BureauxNational Federation of Women's InstitutesNational Society for the Prevention of Cruelty to Children (NSPCC)Red CrossRefugee CouncilSafe and Sound DerbySalvation ArmySave the ChildrenStop the TraffikStop UKTARAUK Network of Sex Work ProjectsUNICEF36Unseen UKWelsh Women’s AidGLOSSARYAdjournmentThe postponement of the hearing of a case until a future date.AppealA request for a higher court to change a decision made by a lower court.BailThe release of a person held in custody while awaiting trial or appealingagainst a criminal conviction.ChargeWhen a suspect is formally accused of committing a crime.Civil ProceedingsThese are non-criminal proceedings that usually take place in the County orHigh Court.Code for Crown ProsecutorsA document that sets out how the CPS makes decisions about cases. It iswidely available to the public from any of our offices, and it is on the internetat: www.cps.gov.uk/victims_witnesses/code.html.ComplainantA person who alleges a crime has been committed against them.ConvictionA decision a jury that the defendant is guilty.Cross-examinationChallenging the evidence given by a witness in court.Crown CourtA court where criminal cases are dealt with by a judge and a jury of twelvemembers of the public. The cases heard in the Crown Court are those likely toattract higher sentences (for example, human trafficking, rape, and murder).DefendantA person charged with a criminal offence.Evidence3738The information given to the court to help make it to make a decision aboutwhether or not a defendant is guilty. ‘Evidence-in-chief’ is the evidencepresented to the court during the examination-in-chief.Examination-in-chiefThe questioning of the witness by the party who called him or her.Prosecution witnesses will be questioned first by the prosecution, beforebeing cross-examined by the defence.InterpreterAn interpreter is a person specifically trained to help children and adults whocannot speak English or is a Deaf person, to be able to communicate at thepolice station and at court.PleaWhen a defendant says he or she is guilty or not guilty.ProsecutorThe person who presents the case against one or more defendants.Prosecutors present cases on behalf of the Crown (in other words, the state)and do not act on behalf of victims.Re-examinationThis involved the questioning of a witness in court by the person whooriginally called him or her to give evidence. It follows cross-examination.Special measuresThe help for witnesses that a court can offer so that they can give their bestevidence in court. They include: live video links, video recorded statements,screens around the witness box, and assistance with communication.TrialThis occurs after a defendant has entered a not guilty plea or refuses to entera plea. The judge and jury hear what happened from the prosecution anddefence, so that they can make up their minds about whether or not thedefendant is guilty.VictimA person who has had a crime committed against them.WitnessA person who can give relevant evidence in a criminal case. This will usuallyinclude the victim of a crime.Witness Care UnitRun by the police and CPS, Witness Care Units provide help and informationfor victims and prosecution witnesses.Crown Prosecution ServiceStrategy and Policy DirectorateRose Court2 Southwark BridgeLondon SE1 9HSEmail: hqpolicy@cps.gsi.gov.uk